Fergal F. Davis

Declarations of Incompatibility, Dialogue and the Criminal Law

The past 30 years have seen the development of ‘New Commonwealth’ forms of judicial review. These models of review are characterized by an emphasis on institutional dialogue over either legislative or judicial supremacy. Thus, instead of giving courts a strike down power, dialogic review grants courts the power to declare legislation ‘incompatible’ with human rights norms while leaving the final say on the legislation with the legislature. This article explores the potential for controversy when such a non-binding mechanism is employed in the arena of the criminal law. In particular, it focuses on the Northern Irish case of R v McR and the Australian case of Momcilovic v the Queen. These cases demonstrate the difficulties associated with the operation of dialogic review in the criminal law.

Brexit, the Statute of Westminster 1931 and Zombie Parliamentary Sovereignty

Brexit, we are told, means Brexit. And Brexit was about ‘taking back control’. While the constitutional settlement which will emerge post-Brexit remains unclear, the process does seem to signal a return to a more traditional—less compromised—form of parliamentary sovereignty. But what does a sovereign Parliament at Westminster look like? This article will contend that the sovereignty of the UK Parliament was compromised prior to 1972. Furthermore, any post-Brexit constitutional settlement needs to more fully account for the imbalances which have starkly emerged in the UK Constitution—independently of EU membership—since 1972. Brexit necessitates a fresh constitutional settlement and that settlement must be built on solid foundations. Re-examining the Statute of Westminster 1931 should prove instructive in the post-Brexit environment. The 1931 Statute clearly pre-dates the UK’s EU membership and yet it had a significant impact on the sovereignty of the Parliament at Westminster. If the absolute sovereignty of Parliament was already compromised in 1931 then any new constitutional settlement—emerging post-Brexit—must acknowledge that the (absolute) sovereignty of Parliament provides a poor constitutional foundation. This article will first set out some of the factors contributing to an imbalance in the UK Constitution. That imbalance required addressing pre-Brexit but post-Brexit we

Undermining Trial by Jury in Russia in Counterterrorism and the Wider Criminal Law

Abstract The re-adoption of trial by jury in Russia in 1993 was heralded as a significant break with the discredited legal system of a crumbling regime. However, in less than twenty years the jury in Russian criminal trials has been significantly undermined; that process is particularly evident in the field of counterterrorism. This article examines the history of trial by jury in Russia, the constitutional and legislative provisions adopted in the 1990s, and the rolling back of these provisions in the first decade of the twenty-first century. Given the adoption of jury trial in a number of democracies in the early 1990s the underlying causes of the rapid Russian retrenchment are of significance beyond the Russian Federation. The jury was not a legal transplant in Russia and it was hoped that conditions were fertile for the jury to flourish. This has not proven to be the case: Russian jury trial may have a long history but it has shallow roots.

Trial by jury : time for a re-evaluation.

Trial by jury for federal offences appears to be guaranteed by s 80 of the Constitution. Case law, however, leads to the conclusion that this guarantee is far from watertight. As Australia adopts more and more anti-terrorism legislation, two questions must be addressed: can the right to trial by jury be constitutionally interfered with; and how important is it anyway? As an Irish scholar working in the UK and visiting Australia I have decided to tackle these questions.